The Sky Isn’t Falling… Yet.

The doomsayers, pessimists and chickens’ little are all in a panic over nothing, I think. With the passage of Measure T, I felt it prudent to look further into election law to better understand what to expect now.  Let’s start with the law.

California Elections Code 9217: If a majority of the voters voting on a proposed ordinance vote in its favor, the ordinance shall become a valid and binding ordinance of the city. The ordinance shall be considered as adopted upon the date that the vote is declared by the legislative body, and shall go into effect 10 days after that date. No ordinance that is either proposed by initiative petition and adopted by the vote of the legislative body of the city without submission to the voters, or adopted by the voters, shall be repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance.

Typical legal mumbo jumbo.

I’ll try to tackle it one piece at a time.

“If a majority of the voters voting on a proposed ordinance vote in its favor, the ordinance shall become a valid and binding ordinance of the city.” That’s it, period, Measure T is law in Brea. No negotiations, no editing, no expensive legal challenges… it’s law.

“The ordinance shall be considered as adopted upon the date that the vote is declared by the legislative body, and shall go into effect 10 days after that date.” The City of Brea has, or shortly will be, in receipt of the final vote count from the Orange County Registrar of Voters. Though the agenda for the December 4th Council meeting has yet to be published, it is reasonable to anticipate that the ROV’s declaration will be accepted by Council that evening.

If anything deserves or qualifies to be placed on the consent calendar, the acceptance of the ROV’s final declaration does. I mean, what would require Council discussion or debate at this point?

This is a routine and necessary step preceding the swearing in of reelected/new council members and the annual reorganization of the Council slated for their December 18th meeting. This means that Measure T becomes law automatically on December 14th.

“No ordinance that is either proposed by initiative petition and adopted by the vote of the legislative body of the city without submission to the voters, or adopted by the voters, shall be repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance.” The measure, now law, cannot be repealed or amended without the people voting again on the matter. There is no provision contradicting this in the original ordinance.

But wait! There’s More!

Measure T included a severability clause. In short this means, if some provisions of the law, or certain applications of those provisions, are found to be unconstitutional, the remaining provisions, or the remaining applications of those provisions, will, nonetheless, continue in force as law.

In simple terms, should the City of Brea, at a later date, decide to take issue with some part of the law, they are free to do so but must prove their case in a court of law. If they prevail, the balance of the law remains intact as originally written.

A couple of examples.

Let’s say, somewhere down the road, the City needs to hire a new City Manager.

Due to excessive salaries being paid to City Managers across the state, the City might claim to find it difficult to locate acceptable candidates willing to work for a salary conforming to the limitations imposed by the law. The City, apparently, can use this situation to challenge the salary cap, though I fail to see where their problem has anything to do with the Constitution.

In today’s tough economic climate, with so many highly qualified people either underemployed or out of work, I would imagine finding someone better qualified would be a slam dunk. What would the qualifications be?

  • Having the people’s best interests at heart.
  • Having a willingness to follow the guidance of elected officials rather than an obsessive need to control everything.
  • Willing to work for a fair and reasonable salary, as defined by law.

Another issue that may arise, as has been suggested by the City Attorney, might be the requirement that the City Manager live in Brea, citing the “four miles from city hall” as being unconstitutional.

More a tactic Mr. Markman and Mr. O’Donnell had hoped would help dissuade voters from passing the measure, there is really little or no problem finding cases across this country where elected officials, educators and public safety personnel have been required to live within the community in which they serve.

In either case, until a specific issue is raised due to immediate circumstances, there is no provision that would allow the City to arbitrarily challenge one or more components of the law. It could be years before such a circumstance might present itself.

Immediate impact.

Neither council member Simonoff or council member elect Marick, upon being sworn in on December 18th, will receive or continue to receive flex benefits currently paid to City Council. There is a remote possibility that any stipend adjustment, to be consistent with the limitations prescribed by the State, would as likely create a slight increase to the stipend (which hasn’t seen a raise for maybe a dozen years) than a decrease.

I suppose they could decide to challenge this… trying to find a loophole or something, but the people have spoken, why would they be so foolish?

Both Simonoff and Marick, though not supporters of the initiatives, have expressly promised to:

  • Listen closely to their constituent’s opinions.
  • Conduct all City business openly and in full public view.
  • Carry out the City’s business in a responsible, fiscally conservative manner.

Any attempt to line their pockets by circumventing the constraints specified by Measure T will show that their campaign promises were merely political rhetoric designed to get them elected.

13 thoughts on “The Sky Isn’t Falling… Yet.

  1. So, if I understand correctly, prior to Measure T becoming law, the flex benefit is $1050 per month for each city council member. Under measure T, they may only receive the same benefits package provided to eligible part-time employees, which results in the elimination of the flex benefit.

    So basically, Murdock’s, Garcia’s and Moore’s flex benefits are grandfathered until the next election?

    Do you know if the council can increase the stipend for all council members without affecting the flex benefits currently received by Murdock, Garcia and Moore? Are city council members required to sign an employment agreement with the city prior to taking office?

    Somehow, I have a feeling that Mr. Markman’s Christmas present (a large legal bill to the city of Brea), will be arriving sooner than later. I just wonder how many council members will approve such an action?

    • Stephen… Yes, Measure T terminates the flex benefits of Simonoff and Marick now, and for Moore, Garcia and Murdock in two years should they be reelected. Both Moore and Garcia have made noises that they will not be running in 2014, but politicians reserve the right to change their minds… and often do. I don’t know if there are employment agreements.

      IMHO, the likelihood that Murdock will get reelected is as close to zero as one can get. Seriously, look at his track record… or lack of one actually. He’s proven to be little more than an inarticulate rubber stamp.

      Council may give themselves a stipend raise, but only within the limitations as described by the State. They have not done so, as stated, in about a dozen years. If they decided to “bring themselves current” by increasing whatever the State might have allowed since their last raise, I still don’t think they would hit $700 a month.

      Their final action earlier this year, to repair their accidental pay raise to themselves, returned their status to that of part-time employees and separated the stipend from the flex benefit, which is what got them in hot water in the first place.

      It will be sticks and coal for little Jimmy Markman this Christmas, more than he probably deserves given what a bad bad boy he’s been this year.

      The sky isn’t falling Stephen, and it’s a dangerous practice to second guess the City Council. Remember, I’m a professional, do not try this at home.

  2. Thanks for the clarification, Rick. Considering how three city coucil members fell on their swords last year for Tim O’Donnell, I guess I’m kind of expecting O’Donnell (with the aid of Markman) to reciprocate this year and do everything he can to maintain the status quo (and his grip on the council majority).

    • Stephen… it’s difficult to “reciprocate” when the law now provides a barrier. If only the people had understood and passed Measure U, we would have the added pleasure of seeing the looks on their faces as well.

  3. Nothing like some good ole fashion political and legal fun to start a Thursday morning. Rick, I have to say, you’re totally on top on how Brea runs and is governed.

    So I guess the lightning rod of Measure T was the City Manager and other administrative officials getting paid an amount that exceeds 2.5 times the median household income of the City of Brea. Fair enough. I saw it was a close vote (53.5 – 46.5), but with the economic conditions of today I would have voted for it as well.

    Keep them honest out there Rick.

    • Steven… Keeping an eye on city hall is something I wish more people did. It’s often shocking and disappointing what you stumble across down there, but if no one watches, they can and do get away with murder.

      More than 2.5 times the median, yes… try over $300,000 for the City Manager (well more than the Governor). I blame Council for that massive fiscal blunder.

      The final tally had Measure T at 54%, 12 more votes than Mr. Simonoff garnered to land his 5th term.

  4. My dear friend lives in Brea and has mentioned to me how confusing this entire ordeal is. I guess I’ll just send her your way since you seem to be on top of it. Great job breaking down the legalese!

    • Sasha… Would love to hear from your friend. Have her email me and I will add her to the alerts list. The more, the merrier! Thanks!

  5. My faith that one person can have an impact in local politics is restored by observing what a difference your blog has made in informing the citizens of Brea and keeping your politicians looking over their shoulders.

    I honestly don’t know if we have the kind of shenanigans going on locally that you seem to have had in Brea over the last few years, but one area I wish we could see something similar is the school budget.

    Year after year, the budget has been voted down, and year after year, the school district goes to the township and voila! With some very minor tweaking, the budget passes anyway.

    “If a majority of the voters voting on the school budget, vote against it, the school budget shall not be adopted,” would be music to my ears.

    • Susan… I appreciate your kind comments and continued support.

      How politics work at the local level varies widely from state to state. Here, the school board sought public approval to burden our property tax to the tune of over $50 million when they couldn’t account for the last $22 million they were given. Breans voted a resounding no. Here are three threads that will fill you in: “Measure E Is A Farce“, “OC Register Says No On Measure E” and “Measure E – Follow The Money“.

      Sounds to me like it’s time for you and your neighbors to start lobbying for a new system that puts checks and balances back into the hands of the people.

      How about starting your own blog?

      With your background and experience, I’m sure it would gain a quick and robust following and seriously mold public opinion.

  6. I remember your previous posts Rick and I can see now in more detail what Measure T is all about. So, what does the future hold?

    • Tereza… The measure will become law and likely, parts may be challenged down the road. If council members honor the spirit of the law, they will restrain our over zealous and perpetually litigious City Manager and City Attorney from, once again, wasting taxpayer dollars.

  7. According to Roy Moore’s Brea Net #637 (11/29/12) “Tentatively scheduled for the January 15 City Council meeting is a presentation by the City Attorney to explain the implications of Measure T.”

    Implications? No more fat cats.

    City staff will earn a fair and reasonable income with benefits the city can afford, something we should have been doing for decades. It’s called living within our means.

    Quit grandstanding Mr. Markman.

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